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September 16, 2017

"Criminalizing Race: Racial Disparities in Plea Bargaining"

The title of this post is the title of this notable new paper authored by Carlos Berdejó available via SSRN. Here is its abstract:

Most of the empirical research examining racial disparities in the criminal justice system has focused on its two endpoints — the arrest and initial charging of defendants and judges’ sentencing decisions. Few studies have assessed disparities in the steps leading up to a defendant’s conviction, where various actors make choices that often constraint judges’ ultimate sentencing discretion. This article addresses this gap by examining racial disparities in the plea-bargaining process, focusing on the period between the initial filing of charges and the defendant’s conviction.

The results presented in this article reveal significant racial disparities in this stage of the criminal justice system. White defendants are twenty-five percent more likely than black defendants to have their principal initial charge dropped or reduced to a lesser crime. As a result, white defendants who face initial felony charges are less likely than black defendants to be convicted of a felony. Similarly, white defendants initially charged with misdemeanors are more likely than black defendants to be convicted for crimes carrying no possible incarceration or not being convicted at all.

Racial disparities in plea-bargaining outcomes are greater in cases involving misdemeanors and low-level felonies. In cases involving severe felonies, black and white defendants achieve similar outcomes. Defendants’ criminal histories also play a key role in mediating racial disparities. While white defendants with no prior convictions receive charge reductions more often than black defendants with no prior convictions, white and black defendants with prior convictions are afforded similar treatment by prosecutors. These patterns in racial disparities suggest that prosecutors may be using race as a proxy for a defendant’s latent criminality and likelihood to recidivate.

"Parental Arrest, Incarceration and the Outcomes of Their Children"

The title of this post is the title of this paper recently posted to SSRN authored by Stephen Billings. Here is the abstract:

Parental arrest and incarceration represents a profound and traumatic experience for almost 3 million children in the U.S. and scholars in sociology and criminology consistently find negative impacts of parental incarceration on children across a range of academic and behavioral outcomes. Unfortunately, the challenge of disentangling parental incarceration from other parenting attributes has limited causal inference in this literature.

The research presented here provides compelling evidence that parental arrest coincides with negative outcomes for children, but that the incarceration of a parent may have short term benefits for the child. Results suggest that incarceration removes negative role models and leads to changes in a child's home environment.

September 15, 2017

As reported in this Politico piece, the "Justice Department's No. 2 official indicated Thursday that the federal government's policy on prosecuting corporate crime is under review and he suggested that changes to the department's stance on the issue are coming." Here is more:

"It’s under review and I anticipate that there may be some change to the policy on corporate prosecutions," Deputy Attorney General Rod Rosenstein said Thursday during a question-and-answer session following a speech at the conservative Heritage Foundation in Washington. "I don’t have any announcement about that today, but I do anticipate that we may in the near future make an announcement about what changes we’re going to make to corporate fraud principles."

The department's current policy, announced by Deputy Attorney General Sally Yates in September 2015, aimed to increase prosecutions of individuals responsible for criminal acts committed during work for corporations. The so-called Yates memo was seen in part as a reaction to criticism of the anemic number of prosecutions of individuals on Wall Street or at big banks for crimes related to the economic meltdown in 2008.

Rosenstein did not indicate what portions of the Yates memo are likely to be overhauled or halted. He also said that he favors prosecutions of individuals in appropriate cases. "Corporations, of course, don’t go to prison. They do pay a fine," Rosenstein said. "The issue is can you effectively deter corporate crime by prosecuting corporations or do you in some circumstances need to prosecute individuals. I think you do."

Advocacy for the "the smart way to get 'tough' about crime"

Brandon Garrett has this new CNN commentary discussing some of the themes in his new book titled "End of Its Rope: How Killing the Death Penalty Can Revive Criminal Justice." Here is hoe it starts and ends:

It is time to retire the phrase "tough on crime." There is nothing tough about the harsh punishments that contributed to mass incarceration in this country. In fact, the opposite is true; as the latest data show, a nationwide push in the past decade to move away from these failed approaches has coincided with a remarkable decline in crime. Instead of being "tough," we need to be smart.

Multiple states have passed laws to end cash bail, reduce mandatory sentences, invest in addiction and mental health treatment, and divert convicts toward alternatives to incarceration. Even states such as Louisiana, with the highest incarceration rate in the world, just passed reforms and is currently reviewing 16,000 sentences for possible reduction. Cities such as Oklahoma City and Houston have taken new steps to reduce jail populations.

And crime continues to fall. According to a Brennan Center report released on Wednesday, violent crime is back down again so far in 2017, after a spike in 2015-16 in certain cities. This year is projected to be the year with the second-lowest crime rate in 25 years. Murder rates are down 2.5%, with declines in cities such as Chicago that accounted for the blip in 2015 and 2016.

So contrary to what some politicians say, there is no national crime wave; it is more like a lake drying up. Even the localized crime bumps in a handful of cities seem to be subsiding. We don't need a new war on crime when we are winning the peace....

Now is the time to redouble efforts to focus on deeper reductions in imprisonment, charging, sentencing and release and reentry of prisoners. Even if the President and the attorney general are trying to redouble the war on drugs, as if we were still living in the 1980s, those days are far behind us. Reform is working and crime is still falling. We need to push it farther to shrink our bloated criminal justice system. That is the smart way to get "tough" about crime.

September 14, 2017

New York Times reporting that Prez Trump back in May urged AG Sessions to resign then rejected his letter of resignation

This new New York Times article reports on notable details of the history of recent tensions between Prez Trump and AG Sessions under the headline "Trump Humiliated Jeff Sessions After Mueller Appointment." Here is how it gets started:

Shortly after learning in May that a special counsel had been appointed to investigate links between his campaign associates and Russia, President Trump berated Attorney General Jeff Sessions in an Oval Office meeting and said he should resign, according to current and former administration officials and others briefed on the matter.

The president blamed the appointment of the special counsel, Robert S. Mueller III, on Mr. Sessions’s decision to recuse himself from the Justice Department’s Russia investigation — a move Mr. Trump believes was the moment his administration effectively lost control over the inquiry. Accusing Mr. Sessions of “disloyalty,” Mr. Trump unleashed a string of insults on his attorney general.

Ashen and emotional, Mr. Sessions told the president he would quit and sent a resignation letter to the White House, according to four people who were told details of the meeting. Mr. Sessions would later tell associates that the demeaning way the president addressed him was the most humiliating experience in decades of public life.

The Oval Office meeting, details of which have not previously been reported, shows the intensity of Mr. Trump’s emotions as the Russia investigation gained steam and how he appeared to immediately see Mr. Mueller’s appointment as a looming problem for his administration. It also illustrates the depth of antipathy Mr. Trump has had for Mr. Sessions — one of his earliest campaign supporters — and how the president interprets “disloyalty” within his circle of advisers.

Mr. Trump ended up rejecting Mr. Sessions’s May resignation letter after senior members of his administration argued that dismissing the attorney general would only create more problems for a president who had already fired an F.B.I. director and a national security adviser. Mr. Trump once again, in July, told aides he wanted to remove Mr. Sessions, but for a second time didn’t take action.

The relationship between the two men has improved marginally since midsummer, as Mr. Sessions has made a public display of hunting for the leakers among the administration’s national security officials. His allies said that despite the humiliation, the attorney general has stayed in the job because he sees a “once-in-a-lifetime” opportunity as the nation’s top law enforcement official to toughen the country’s immigration policies.

"Fragmentation and Democracy in the Constitutional Law of Punishment"

The title of this post is the title of this recently published paper that I recently noticed authored by Richard Bierschbach. Here is its abstract:

Scholars have long studied the relationship of structural constitutional principles like checks and balances to democracy. But the relationship of such principles to democracy in criminal punishment has received less attention. This Essay examines that relationship and finds it fraught with both promise and peril for the project of democratic criminal justice. On the one hand, by blending a range of inputs into punishment determinations, the constitutional fragmentation of the punishment power can enhance different types of influence in an area in which perspective is of special concern. At the same time, the potentially positive aspects of fragmentation can backfire, encouraging tunnel vision, replicating power differentials, and making it easier for more well-resourced voices to drown out others. Thus, the same structure that generates valuable democratic benefits for punishment also falls prey and contributes to serious democratic deficits. But despite its drawbacks, we cannot and should not abandon the Constitution’s fragmented approach to crime and punishment. The more promising move is to look for ways to make different loci of influence and representation more meaningful within our existing framework, doing more to ensure that multiple voices are heard.

As reported in this Washington Post piece, headlined "Kushner to gather bipartisan group to come up with ideas for federal prisons," an event scheduled for today in the White House suggests criminal justice reform issues are not completely dormant at the federal level. Here are the details:

President Trump’s son-in-law and senior adviser, Jared Kushner, will convene a roundtable Thursday at the White House to gather recommendations for improving mentoring and job training in federal prisons, a departure from the administration’s focus on more punitive crime-fighting measures. A bipartisan group of about two dozen elected officials, religious leaders and business leaders were invited to the first major criminal justice-related event held by the Kushner-led Office of American Innovation, which in recent months has brought together technology executives to search for ways to make government more efficient.

Kushner’s interest in corrections policy is personal: His father, Charles Kushner, a real estate executive, was sentenced in 2005 to two years in federal prison after pleading guilty to tax evasion. Jared Kushner has said the experience gave him a glimpse of the challenges inmates and their families face in and outside of prison. “There is a lot of agreement from the left and the center and the right that once a person has committed a crime we should make sure we give them the best opportunities to try to live a productive life after serving their time,” Kushner told The Washington Post in a telephone interview. “We’re not looking to train better criminals.”

The event, which had not been officially announced as of Wednesday morning, comes after a months-long push by Trump and Attorney General Jeff Sessions for more aggressive prosecution of drug offenders and illegal immigrants. In May, Sessions jettisoned an Obama administration policy that instructed federal prosecutors to avoid charging low-level criminals with drug offenses that would trigger severe mandatory-minimum sentences, a shift projected to boost the prison population. Those efforts are at odds with a growing consensus that the mandatory-minimum sentences that proliferated during the “war on drugs” fueled crowded, costly prisons that unduly burden taxpayers and do not improve public safety. A number of states, including several led by Republicans, are curbing their inmate populations and even closing prisons by reducing mandatory-minimum sentences and expanding parole and probation.

Kushner’s private discussions in recent months with members of Congress and outside groups have included sentencing reform, according to participants, but Thursday’s meeting is more narrowly focused on preparing inmates to reenter society. Neither Sessions nor his newly appointed Bureau of Prisons director, retired Army Gen. Mark S. Inch, will attend, although some Justice Department officials are expected to participate.

Criminal justice advocates invited to the roundtable said the gathering is a positive first step, and they called for expanding drug and mental health treatment, vocational training, mentoring programs and placement in halfway houses. “Regardless of what you think about who goes to prison or how long they need to be there, most people come out eventually, so let’s make sure they are better off than when they came in,” said Mark Holden, general counsel for Koch Industries, a leading conservative proponent of reducing incarceration levels. “Of course I want to see the dialogue on criminal justice issues continue and looked at comprehensively. We need a holistic solution.”

The federal prison population is expected to grow by 2 percent over the coming year, rising by 4,171 inmates, to a total of 191,493, and reversing the downward trend of the past four years, according to the Trump administration’s proposed budget. Yet the proposal calls for a 14 percent reduction in federal prison jobs, including 1,850 fewer corrections officers. Many of those positions are vacant. The Justice Department is seeking $10 million to cover the costs of food, health care, transportation and programs for the additional inmates, but it’s unclear how much money would be allocated to education and vocational training....

Asked about federal funding, Kushner said, “We’re not at a place where we are prescribing solutions. We’re bringing people together and generating ideas. If prisoner reentry programs are successfully executed, it’s usually a good investment.” A request for recommendations from participants before the conference said, “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”

On Capitol Hill, Rep. Douglas A. Collins (R-Ga.) has introduced a bill that would require federal prisons to assess inmates’ needs and offer rehabilitation programs. Co-sponsored by House Judiciary Chairman Bob Goodlatte (R-Va.), the measure requests $250 million over the next five years for prison education programs.

Among the elected officials slated to participate in Thursday’s program are Housing and Urban Development Secretary Ben Carson, Labor Secretary Alex Acosta, Sen. John Cornyn (R-Tex.), Sen. Sheldon Whitehouse (D-R.I.), and Republican Govs. Matt Bevin of Kentucky and Sam Brownback of Kansas.

September 13, 2017

In sentencing filing, Anthony Weiner asks for probation and community service after guilty plea to transferring obscene material to a minor

As reported in this new Bloomberg piece, "Anthony Weiner, the former congressman and New York mayoral candidate whose career and personal life were wrecked in a series of sexting scandals, asked a judge for leniency when he’s sentenced later this month." Here is more about his sentencing filing and what prompts it:

Weiner pleaded guilty in May to sending sexually explicit messages to a 15-year-old girl, admitting to a single criminal count of transmitting obscene material to a minor. The guilty plea capped a stunning downfall that played a major role in the final days of the 2016 presidential election.

In a court filing late Wednesday, Weiner asked for probation and community service. “In sum, a term of imprisonment would bring Anthony’s indisputably successful treatment for the sickness underlying his crime to an immediate and complete halt, and separate Anthony from the son who has motivated his recovery,” his attorneys wrote in the sentencing memo.

“Given the unusual circumstances of this offense and the ability of a sentence without incarceration to impose just and meaningful punishment while permitting continued treatment, a non-incarceratory sentence of the kind proposed above would be ‘sufficient but not greater than necessary’ to satisfy the goals of sentencing.”

Weiner faces as much as 10 years in prison when he’s sentenced Sept. 25. As part of a plea deal, prosecutors will seek a term of 21 months to 27 months, which isn’t binding on the sentencing judge. Weiner must register as a sex offender and will forfeit his iPhone. An FBI investigation into Weiner’s sexually explicit messages turned up emails that had been sent to his wife, Huma Abedin, then a top aide to Democratic presidential candidate Hillary Clinton....

Weiner “has already been punished in a meaningful way by the government, just not in a judicially sanctioned manner,” his lawyers wrote in the memo. “What was supposed to be a confidential grand jury investigation into a personal offense was leaked by ‘law enforcement sources’ and then improperly injected into the presidential election by the then-FBI director.”

"Erasing the Mark of a Criminal Past: Ex-Offenders’ Expectations and Experiences with Record Clearance"

Through the process of record clearance, ex-offenders can have certain minor convictions removed from their criminal record or designated as expunged. This study analyzes data gathered from semi-structured interviews with 40 past offenders to examine the expectations of individuals who seek record clearance and the extent to which completion of the process facilitates efforts to reintegrate into society and desist from crime.

The analysis finds that record clearance benefits ex-offenders through external effects, such as the reduction of barriers to employment, and internal processes, such as the facilitation of cognitive transformation and the affirmation of a new identity. These benefits accrue from both the outcomes of the record clearance process and from the process itself. Increased availability of inexpensive or free opportunities for expungement can contribute to more successful reintegration of ex-offenders into the workforce, families, and communities. Not only would this improve quality of life for the ex-offenders, but it could also increase public safety and reduce public spending.

Potential controversy brewing after Ohio completes its second execution of 2017

This updated AP report on Ohio's execution completed this morning suggest that another lethal injection controversy could be brewing in the Buckeye State. Here are excerpts from the AP report providing the basics (which I have placed in temporal order):

An Ohio killer of two people sang a Christian hymn and quoted the Bible in the minutes before his death.

The last words of Gary Otte were derived from a Bible account of Jesus Christ's crucifixion. He said: "Father, forgive them for they know not what they're doing. Amen." He earlier professed his love for his family, said he was sorry and sighed deeply, then began singing "The Greatest Thing," with such words as "I want to know you Lord."

His singing stopped at 10:39, before he gave a thumbs-up sign. His stomach rose and fell several times, resumed after a consciousness check by guards at 10:42, then appeared to fall still a couple minutes later. The time of death for the 45-year-old Otte was 10:54 a.m.

Relatives of his two 1992 victims were among the witnesses.

A federal public defender who witnessed the execution of a condemned Ohio killer of two says she thinks mistakes were made. Defense attorney Carol Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Gary Otte's (OH'-teez) chest indicated he was suffering a phenomenon known as air hunger.

A spokeswoman for Ohio's prison system says the state followed proper security protocols when a lawyer witnessing an execution tried to leave the witness room. JoEllen Smith, of the Ohio Department of Rehabilitation and Correction, says once attorney Carol Wright's intention and identity were confirmed she was allowed to leave.

Smith said Wednesday's execution of condemned killer Gary Otte was carried out in accordance with prison policy and without complication.

Wright tried unsuccessfully to leave the witness room to alert a federal judge there appeared to be problems. Wright says she believes the rising and falling of Otte's chest indicated he was suffering a phenomenon known as air hunger. Wright says she believe mistakes were made. She reached the judge overseeing Otte's case, but it was too late.

UPDATE:This local article provides some expanded details on the concerns of Otte's attorney under the headline "Attorney for executed Parma murderer says she believes inmate suffered pain during lethal injection."

"Brock Turner: Sorting Through the Noise"

The title of this post is the title of this notable paper recent posted to SSRN authored by Michael Vitiello. Here is the abstract:

This article begins with a quick test. The author asks his readers to spend a few moments reacting to “Brock Turner.” In response, no doubt, many think, “Stanford rapist,” “white privilege,” “special treatment for an elite college athlete,” and perhaps, “illegal sentence." Certainly, that reaction is not surprising, given racial bias in sentencing and special treatment for elite college athletes.

The public response to Judge Aaron Persky’s sentence was quite negative even before Stanford Law Professor Michele Landis Dauber, a family friend of the victim, began a recall effort. The recall efforts have kept the case in the public’s eye. While some members of the public and profession have spoken out against the recall, it seems to be on pace to get on the ballot in the fall of this year.

As troubling as Turner’s sentence is for many observers, issues posed by a judicial recall are quite distinct. The article challenges the media for its role in inflaming public opinion about the case. While the sentence seems far too short in light of Turner’s conduct, an examination of California sentencing criteria, as well as the probation report that Judge Persky relied on in determining Turner’s sentence, makes the case more complicated than widely reported in the media. Even assuming that one disagrees with Judge Persky’s sentence, the article argues that California has led the nation in over reliance on long prison sentences, the result of all-too-familiar-get-tough-on-crime rhetoric. That has led the state to spend unnecessary billions of dollars warehousing offenders who do not represent a serious public safety risk. The article concludes that judicial recall will result in unnecessary additional years of imprisonment for criminal defendants because judges, consciously or unconsciously, may fear for their livelihood if vocal members of the public deem their sentences too lenient.

Former US Attorneys lament AG Sessions' charging memo as returning Justice Department to "failed mindset of its past"

This notable new National Review commentary, headlined "On Criminal Justice, Sessions Is Returning DOJ to the Failed Policies of the Past," is authored by Joyce Vance, the former US Attorney for the Northern District of Alabama, and Carter Stewart, the former U.S. attorney for the Southern District of Ohio. Here are excerpts, with some commentary to follow:

True to form, Attorney General Jeff Sessions has returned the Justice Department to the failed mindset of its past. In implementing his own tough-on-crime mantra, he has required prosecutors, in virtually all cases, to charge the most serious offenses and ask for the lengthiest prison sentences.

Americans have seen this one-size-fits-all policy in action before. It doesn’t work. Today’s America is often a world where everyone adheres to their confirmed views and there is little exchange of information and ideas across political divides. So, when the rare issue comes along that generates a bipartisan consensus, it should be worth seriously considering.

Criminal-justice reform is one of those issues. Yet Attorney General Sessions continues to roll back previously instituted changes that were beginning to reduce America’s prison population, the justice system’s costs, and crime. He is doing so despite the consensus that produced those changes. We should not let this rare opportunity to reform a badly broken criminal-justice system fade away, nor should we permit the consensus on reform to shatter under the consuming cover of national scandal.

Sessions’s charging policy memo, editorials, and planned state tour to push for a crackdown on crime all resemble ineffective and damaging criminal-justice policies that were imposed in 2003. Although those policies’ stated goal was originally to create nationwide uniformity in the justice system, they resulted in the proliferation of questionable prosecutions, and the Bureau of Prisons’ population swelled to its highest level in history, consuming almost one-third of the Department of Justice’s annual budget. One side effect of this fiasco that lingers today is the broken relationship between police departments and the communities they are sworn to serve and protect. The attorney general is aggravating that tension with his recent revival of adoptive forfeiture policies, giving local and state law enforcement a federal benediction to seize the property of suspected criminals. Distrust impedes community cooperation with law enforcement, and increased incarceration rates do little to decrease crime.

The excessive reliance on arrests and extended incarceration was unsustainable, it disparately impacted racial minorities and the poor, and it had a negligible impact on public safety. People leaving prison are too often unable to find jobs because of their criminal records, and two-thirds of them re-offend within three years. It has become obvious that we must do more than just incarcerate people to make our communities safer.

That’s why, in 2013, DOJ promulgated the “Smart on Crime” initiative, which returned charging discretion to federal prosecutors and directed them to use a three-pronged approach: implement priorities for prosecuting the most serious crimes, advance prevention programs, and develop strategies to help people successfully re-enter the community after they’ve served their time. At its core, this approach recognized that each criminal defendant is a person, often with families and friends who care deeply about them....

“Tough on crime” strategies that rely on lengthy prison sentences and property seizure may permit politicians to sharpen their image in the eyes of voters, but they run afoul of justice and fail to deliver results. At the same time DOJ was modernizing its criminal-justice polices, many states were doing so as well. Since 2007, 23 states have reformed their sentencing laws to focus law-enforcement resources on the most dangerous crimes. Often, federal law-enforcement officials worked hand in hand with their state and local counterparts to achieve progress. In Alabama, the legislature created a new felony category for the lowest level of drug and property offenses, sending offenders to less expensive and more effective community corrections programs instead of prison. Ohio eliminated the disparity in criminal penalties between crack and powder cocaine offenses and raised the threshold requirements for felony-theft sentencing. As a result of similar policies, Texas has closed three prisons since 2005 and still enjoyed a 29 percent drop in crime. Georgia and North Carolina have adopted justice-reinvestment programs and had similar success.

As former U.S. Attorneys, we know firsthand that families across our country care about the safety of their communities above all else. We worked hand in hand with law enforcement, members of the community, and victims of crime to pursue those individuals who were the most dangerous. But we also know that an approach that uniformly imposes the harshest penalties on everyone risks damaging community trust and cooperation for generations, jeopardizing safety as a whole. Rehashing tough-on-crime policies based on disproved assumptions is a recipe for failure. The Department of Justice should move forward with its Smart on Crime public-safety and criminal-justice policies, using a proven approach that has reduced prison populations, costs, and crime in states that have implemented it. Justice is about more than just putting people in prison.

This commentary hits many of the themes now common to advocacy for smart-on-crime approaches over tough-on-crime approaches to crime and punishment. But it fails to grapple with the (too simple) reality that nationwide crime rates went down dramatically from 1991 to 2014 when tough-on-crime approaches defined much of the Justice Departments work and that crime rates started moving up significantly not long after DOJ promulgated its "Smart on Crime" initiative. Because of these crime data, AG Sessions and many others likely do not accept the assertion in this commentary that tough-on-crime postures by DOJ have a "negligible impact on public safety." Thanks to prior crime declines and recent crime increases, I think they actually believe tough-on-crime approaches, at least at the federal level, are absolutely essential to public safety. Put differently, I suspect that AG Sessions now sees smart-on-crime approaches as the "failed mindset" and thus he seems very unlikely to be moved by these kinds of commentaries.

September 12, 2017

So much to read about so many elements of the opioid epidemic

I have a hard time keeping up with all the dimensions of the opioid epidemic. And, of course, the epidemic is fundamentally a public health crisis more than a sentencing issue. Nevertheless, I find myself drawn to reading all sort of pieces about the epidemic, and here are links and headlines that have caught my eye recently:

From Business Insiderhere, "One of the states hit hardest by the opioid crisis shows us what’s wrong with how we’re fighting it"

From the Daily Callerhere, "Senators Question Trump’s ‘Commitment To Ending’ The Drug Scourge In Letter Ripping ‘Lack Of Action’

From the New Yorker here, "The Cost of the Opioid Crisis: Trump says he wants an economic revival. He could start by tackling an epidemic."

From Right on Crime here, "Did Richard Nixon Give Us the Winning Strategy to Win the Opioid Epidemic?"

New op-ed and op-doc from New York Times takes on "A ‘Frightening’ Myth About Sex Offenders"

David Feige has a new op-ed and a short video documentary unpacking and attacking the notion that sex offender recidivism rates are extraordinarily high. This op-ed is headlined "When Junk Science About Sex Offenders Infects the Supreme Court," and this op-doc is titled "A ‘Frightening’ Myth About Sex Offenders." Here is how the op-ed starts and ends:

This month the Supreme Court will have a rare opportunity to correct a flawed doctrine that for the past two decades has relied on junk social science to justify punishing more than 800,000 Americans. Two cases that the court could review concern people on the sex offender registry and the kinds of government control that can constitutionally be imposed upon them.

In Snyder v. Doe, the court could consider whether Michigan’s broad scheme of regulating sex offenders constitutes “punishment.” The other case, Karsjens v. Piper, examines the constitutionality of Minnesota’s policy of detaining sex offenders forever — not for what they’ve done, but for what they might do.

And while the idea of indefinite preventive detention might sound un-American or something out of the film “Minority Report,” the larger problem is that “civil commitment,” like hundreds of other regulations imposed on those required to register, has been justified by assertions about the recidivism of sex offenders. But those assertions turn out to be entirely belied by science.

For the past 24 years, Minnesota has detained sex offenders released from prison in a “therapeutic program” conveniently located on the grounds of a maximum-security prison in Moose Lake. The “patients” are kept in locked cells, transported outside the facility in handcuffs and leg irons, and subjected to a regimen that looks, sounds and smells just like that of the prison it is adjacent to.

But unlike prison, this “therapeutic” program, which aims to teach the patients to control their sexual impulses and was initially designed to last from two to four years, has no fixed end date. Rather, program administrators decide which patients are safe enough to release. In the 24 years it has existed, not a single “patient” has ever been fully released. There are now about 850 people in the Minnesota Sex Offender Program, some with no adult criminal record, and others who, despite having completed every single program ever offered at the facility, have remained civilly committed for over 20 years.

While civil commitment is perhaps the most extreme example of punishments imposed on people convicted of sex crimes, it is by no means the only one. Driven by a pervasive fear of sexual predators, and facing no discernible opposition, politicians have become evermore inventive in dreaming up ways to corral and marginalize those forced to register — a category which itself has expanded radically and come to include those convicted of “sexting,” having consensual sex with non-minor teenagers or even urinating in public.

These sanctions include being forced to wear (and pay for) GPS monitoring and being banned from parks, and draconian residency restrictions that sometimes lead to homelessness. In addition, punishments can include, on pain of re-incarceration, undergoing interrogations using a penile plethysmograph, a device used to measure sexual arousal. They have also included requirements that those on the registry refrain from being alone with children (often including their own) and barred from holding certain jobs, like being a volunteer firefighter or driving an ice cream truck.

And when these restrictions have been challenged in court, judge after judge has justified them based on a Supreme Court doctrine that allows such restrictions, thanks to the “frightening and high” recidivism rate ascribed to sex offenders — a rate the court has pegged “as high as 80 percent.” The problem is this: The 80 percent recidivism rate is an entirely invented number....

Now more than ever, Americans should be able to look to our highest court and expect decisions that are based on reason and grounded in science rather than fear. The court must rule wisely and bravely, including being willing to acknowledge its mistake and finally correct the record. More than 800,000 Americans have needlessly suffered humiliation, ostracism, banishment re-incarceration and civil commitment thanks to a judicial opinion grounded in an unsourced, unscientific study. Simple decency and perhaps more important, intellectual honesty demands better.

Wishing for comparable efforts to contest severity in light of legal attacks on leniency of Arpaio pardon

The title of this post is my reaction to this Politico article headlined "Legal groups move to challenge Trump's Arpaio pardon." The article reports on just some of the copious efforts to contest Prez Donald Trump's first use of his clemency authority. Here are the basics:

Two advocacy groups moved on Monday to challenge Donald Trump’s pardon of controversial former Arizona Sheriff Joe Arpaio, alleging that the president's move was unconstitutional because it undermined the power of the federal judiciary.

A public interest law firm, the Roderick and Solange MacArthur Justice Center, sought to file an amicus brief in an Arizona district court, where Arpaio is seeking to vacate a conviction after Trump granted him a pardon last month. The brief was initially turned down by a judge on procedural grounds. A second group, the Protect Democracy Project, also filed an amicus brief on Monday arguing that the pardon is unconstitutional....

The [MacArthur Justice Center] brief contends that Trump’s pardon of Arpaio violated the Constitution because “it has the purpose and effect of eviscerating the judicial power to enforce constitutional rights.” The MacArthur Justice Center lawyers argue that, while broad, presidential pardon power can not be used to undermine the judiciary’s ability to enforce the Bill of Rights or the Fourteenth Amendment. The Arpaio pardon, the lawyers argue, “eviscerates this Court’s enforcement power...by endorsing Arpaio’s refusal to comply with federal court orders.” The brief also takes issue with the breadth of Trump’s pardon, noting that the “text of the pardon is so broad that it purports to allow Arpaio to run for Sheriff again...and escape criminal liability for future contempt.”

Protect Democracy’s lawyers similarly contend that the pardon violates the separation of powers “because it unconstitutionally interferes with the inherent powers of the Judicial Branch.” They also argue that the pardon goes beyond the president’s power — “We are aware of no case in this Court, the Ninth Circuit or the Supreme Court that has upheld a pardon matching the extraordinary circumstances here, where the contempt is used to enforce court orders protecting the rights of private litigants,” the lawyers write — and violates due process.

This extended post by William Jacobson over at Legal insurrection, headlined "DOJ sides with Joe Arpaio, as groups ask Ct to declare Pardon unconstitutional," rightly notes the uphill battle these arguments face and concludes that "it seems highly unlikely that the court would declare that a pardon which on its face is constitutional is not because it involves contempt of court." It also details and links the fourbriefs sought to be filed against the Apraio pardon:

I full comprehend all the political and legal reasons why the Arpaio pardon bothers folks, and I will never tell thoughtful advocates that they are wasting their time by filing amicus brief even when the law seems against them. But, as the title of this post indicated, I still rue the reality that partisan politics so readily energizes a bunch of folks spend lots of time and resources attacking one act of remarkable leniency while so many acts of remarkable severity in our criminal justice systems so rarely engenders even a peep from outside advocates.

Looking at criminal justice reform through the lens of federal budget debates

Last week the Center for American Progress (CAP) released this advocacy document titled "Congress Can Lead on Criminal Justice Reform Through Funding Choices." Though the document is already a bit dated now that a stop-gap funding bill went through Congress late last week, this CAP issue brief still provides a useful primer on how budgets passed by Congress always play a role in criminal justice reform at both the federal and state level. Here is how this document gets started:

As Congress returns from the August recess, one of its most pressing goals will be to pass a series of appropriations bills to fund the federal government for fiscal year 2018, which begins October 1, 2017. Criminal justice stakeholders across the country are paying particularly close attention to the FY 2018 Commerce, Justice and Science (CJS) appropriations bill. This bill not only controls the funding levels for federal criminal justice entities but also sets the amounts available to the U.S. Department of Justice (DOJ) for grants to state and local government counterparts as well as researchers and service providers.

The importance of federal criminal justice resources has become even more pronounced in recent years as the movement to reform criminal justice systems and practices has gained steam. While comprehensive efforts to reduce the size of the federal criminal justice system face headwinds from the Trump administration’s “law and order” policies, congressional leaders have the opportunity to provide federal leadership on this issue through their funding choices. After all, the overwhelming majority of the country’s total incarcerated population — approximately 90 percent — is in state and local systems, not the federal system.

The House and Senate appropriations committees have marked up their respective appropriations bills, providing almost $2.2 billion for the DOJ’s discretionary grant programs for FY 2018. These grant programs represent the primary assistance that the federal government makes available to state and local public safety agencies each year. They also are one of the federal government’s main vehicle for supporting, enhancing, and in some cases influencing state and local criminal justice agencies. The two appropriations bills are likely headed to a floor vote in September. The bills are different from each other, but both are certainly a dramatic improvement on the budget proposed by President Trump, which cuts DOJ’s discretionary grant funding by $310 million.

Congress should ensure that funding priorities are aligned to address the critical and emerging criminal justice issues facing communities today. This issue brief examines four such important funding areas: 1) promote diversion into mental health and substance use treatment instead of incarceration; 2) reduce incarceration rates and levels; 3) eliminate the criminalization of poverty; and 4) increase support for indigent defense.

"Black Disparities in Youth Incarceration: African Americans 5X More Likely than Whites to be Held"

The title of this post is the title of this new fact sheet produced by The Sentencing Project. Here is some of the text to go along with its state-by-state charts:

Black youth were more than five times as likely to be detained or committed compared to white youth, according to data from the Department of Justice collected in October 2015 and recently released. Racial and ethnic disparities have long-plagued juvenile justice systems nationwide, and the new data show the problem is increasing. In 2001, black youth were four times as likely as whites to be incarcerated.

Juvenile facilities, including 1,800 residential treatment centers, detention centers, training schools, and juvenile jails and prisons held 48,043 youth as of October 2015. Forty-four percent of these youth were African American, despite the fact that African Americans comprise only 16 percent of all youth in the United States. African American youth are more likely to be in custody than white youth in every state but one, Hawaii.

Nationally, the youth rate of incarceration was 152 per 100,000. Black youth placement rate was 433 per 100,000, compared to a white youth placement rate of 86 per 100,000. Overall, the racial disparity between black and white youth in custody increased 22 percent since 2001. Racial disparities grew in 37 states and decreased in 13.

In six states, African American youth are at least 10 times as likely to be held in placement as are white youth: New Jersey, Wisconsin, Montana, Delaware, Connecticut, and Massachusetts.

September 11, 2017

Can a federal sentence really "be close to absurd" and yet also be affirmed as reasonable?

The peculiar and perhaps metaphysical question in the title of this post is prompted by a Second Circuit panel decision today in US v. Jones, No. 15‐1518 (2d Cir. Sept. 11, 2017) (available here). The Jones case get intricate thanks to the timing and uncertainties of criminal history litigation. The start of the panel opinion provides a flavor of the mess:

Defendant Corey Jones appeals from a sentence entered in the United States District Court for the Eastern District of New York (Garaufis, J.) following a jury trial conviction for assaulting a federal officer in violation of 18 U.S.C. § 111. He was sentenced as a career offender principally to 180 months in prison to be followed by three years of supervised release. The primary basis for Jones’ appeal is that, in light of the Supreme Court’s holding in Johnson v. United States, 559 U.S. 133 (2010) (Johnson I), New York first‐degree robbery is no longer categorically a crime of violence under the force clause of the Career Offender Guideline, U.S.S.G. §§ 4B1.1 and 4B1.2, and that the district court therefore erred in concluding that his prior conviction for first‐degree robbery would automatically serve as one of the predicate offenses for a career offender designation.

After oral argument in this matter, the Supreme Court decided Beckles v. United States, 137 S. Ct. 886 (2017), which held that the residual clause of the Career Offender Guideline — a second basis for finding a crime of violence — was not unconstitutional. The Court reached this conclusion notwithstanding the government’s concession to the contrary in cases around the country that the residual clause, like the identically worded provision of the Armed Career Criminal Act (“ACCA”), was void for vagueness. In light of Beckles, we find that New York first‐degree robbery categorically qualifies as a crime of violence under the residual clause and therefore need not address Jones’ argument based on the force clause. We also find that his sentence is substantively reasonable and therefore AFFIRM the sentence imposed by the district court.

Judge Calabresi (my former boss) authors a separate concurring opinion in which he explains the various factors and fortuities which he thinks requires an affirmance of a sentence that seems technically sound by infused with problems of timing and equity. I cannot briefly recount he are the curious particulars, but this sentence captures Judge Calabresi's obvious frustration:

What is more — and this may be the true source of my sense of absurdity — there appears to be no way in which we can ask the district court to reconsider the sentence it ordered in view of the happenstances that have worked against Jones, and in view of its assessment of Jones’ crimes and of its downward departure.

For what it is worth, I think reasonableness review can and should be a very flexible and robust means for circuit courts to require resentencing whenever it has a basis for being concerned, procedurally or substantively, with any aspects of the proceedings below in light of the sentencing commands of 3553(a). Consequently, I think the Second Circuit could have said simply that "happenstances that have worked against Jones" since the time of his initial sentencing cast new light on the 3553(a) factors and thus his sentence is procedurally unreasonable and he should be resentenced.

Last week the Government Accountability Office released this interesting new report titled "Nonviolent Drug Convictions: Stakeholders' Views on Potential Actions to Address Collateral Consequences." The 47-page report is worth a full read, and this highlights page provides these highlights (and the graphic reprinted here):

Collateral consequences are the penalties and disadvantages that can be imposed upon an individual with a criminal conviction, in addition to those directly associated with a sentence (such as a fine, prison, or community service). GAO’s review of the American Bar Association’s (ABA) National Inventory of the Collateral Consequences of Conviction (NICCC) found that, in federal laws and regulations, there are 641 collateral consequences that can be triggered by nonviolent drug convictions (NVDC). For example, individuals with NVDC may be ineligible for certain professional licenses and federal housing assistance. The NICCC data that GAO reviewed indicate that these 641 collateral consequences can limit many aspects of an individual’s life, such as employment, business licenses, education, and government benefits. In addition, GAO also found that the NICCC identified that 497 (78 percent) of the 641 collateral consequences can potentially last a lifetime.

Of the 641 federal collateral consequences for NVDC, GAO found that the NICCC identified 131 (20 percent) as having a relief mechanism in a related law or regulation that prescribed how an individual could potentially obtain relief from the consequence. For example, individuals may be relieved if they successfully complete a drug rehabilitation program or receive a pardon.

Thirteen of the 14 stakeholders GAO interviewed said the federal government should consider taking action to reduce the severity of (i.e., mitigate) federal collateral consequences for NVDC, such as conducting a comprehensive review of these collateral consequences and implementing a new relief mechanism. Additional mitigation could, according to some stakeholders, help individuals with NVDC obtain employment, housing, or education; and almost all the stakeholders said mitigation could potentially reduce the likelihood of reoffending. At the same time, federal collateral consequences can serve public safety functions and protect government interests. Some stakeholders cautioned that federal action should strike the appropriate balance between preserving collateral consequences that provide a public safety benefit, and addressing consequences that can cause unnecessary burdens and potentially increase the likelihood that individuals with NVDC reoffend.

"Guideposts for the Era of Smart Decarceration"

The title of this post is the title of this notable document produced by the Smart Decarceration Initiative and authored by Carrie Pettus-Davis, Matthew Epperson and Annie Grier. (The document was released earlier this year, but was just recently brought to my attention.) Here is part of its executive summary:

Reducing the United States’ overreliance on incarceration requires deliberate action. Proponents of smart decarceration recognize the need for clearly articulated areas of targeted intervention — or guideposts — to inform the multifaceted nature of criminal justice reform. An important first step as we enter the era of decarceration is to merge the collective goals and strategies of diverse and highly invested stakeholders.

Despite the expansion of efforts to reduce jail and prison populations and reform criminal justice policy and practice, a comprehensive, inclusive, and actionable approach has been relatively absent from the conversation. Such an approach is only possible if criminal justice stakeholders agree upon the foundational objectives that can generate lasting decarceration. In this report, we offer guideposts and actionable strategies for the era of smart decarceration in America.

This document was written by leaders of the Smart Decarceration Initiative (SDI). SDI is a joint initiative of Washington University in St. Louis and the University of Chicago and is located at the Center for Social Development at Washington University’s Brown School of Social Work. SDI’s mission is to build social capacity to reduce incarceration rates in ways that are effective, sustainable, and socially just. Smart decarceration will only be achieved when three simultaneous goals are accomplished:

• Substantially reduce the incarcerated population in jails and prisons;

• Redress race, economic, and behavioral health disparities of those involved in the criminal justice system;

• Maximize public well-being and public safety.

SDI is grounded in four guiding concepts:

1. Changing the narrative on incarceration and the incarcerated. A smart decarceration approach must soberly question the utility and function of incarceration and actively welcome currently and formerly incarcerated individuals as leaders in decarceration efforts.

2. Making criminal justice systemwide innovations. Criminal justice transformation that leads to smart decarceration will require advances in all sectors of the criminal justice system, including law enforcement, court systems, jails and prisons, and probation and parole.

3. Implementing transdisciplinary policy and practice interventions. Smart decarceration will be complex and comprehensive and will require integrating perspectives from multiple disciplines to produce substantive policy reforms and practice innovations.

4. Employing evidence-driven strategies. A smart decarceration approach must both generate new evidence for optimal reforms and use existing evidence to guide decision-making and program development. Methods must be integrated to continuously examine and assess the effects of policy and practice interventions, thus developing further evidence from which to act.

This report, Guideposts for the Era of Smart Decarceration, is a result of our efforts to build consensus and articulate priorities that stakeholders have identified as feasible and likely to produce meaningful impact in the era of decarceration. Integral to ensuring that smart decarceration is achieved is that the ideas and needs of multiple stakeholders are represented.

This report contains a set of guideposts and action steps for stakeholders identified over a three-stage process of soliciting input from 307 advocates, practitioners, reformers, and researchers. Stakeholders were engaged in this process between September 2014 and September 2016. The purpose of Phase 1 was to show where to focus decarceration efforts. Phase 2 was used to reveal the prioritization of specific action steps that could be taken to promote decarceration in ways that are consistent with smart decarceration goals and guiding concepts. Phase 3 articulated universal policy strategies to facilitate decarcerative change....

September 10, 2017

Does latest US Sentencing Commission data hint at the emerging impact of the new Sessions memo?

The question in the title of this post is the result of my (perhaps premature) effort to see the development of a (slight) new trend in the latest federal sentencing data reported this past week by the US Sentencing Commission. These latest data appear in this standard quarterly data report from the USSC titled simply FY 2017 Quarterly Report on Federal Sentencing Data, which "contains preliminary data on cases in which the offender was sentenced during the first three quarters of fiscal year 2017." The first three quarters of FY17 runs October 1, 2016 through June 30, 2017, which in turn means nearly the last two months of the most recent reported data reflect sentencings that took place after Attorney General Jeff Sessions issued in early May 2017 his charging and sentencing memorandum directing federal prosecutors to more regularly seek within-guideline sentences.

Critically, lots of predictable and not-so-predictable factors can impact federal sentencing data from month to month and year to year. So, it can be a mistake to see trends or assert causal links based on just a little bit of data. Nevertheless, I cannot help but find notable and note here the data points on Table 12 of the new USSC data, which provides quarter-by-quarter data on within-guideline and outside-guideline sentence. That Table shows that in every full quarter after former Attorney General Eric Holder announced his "Smart on Crime" policies in August 2013, at least 20% of all sentences were judge-sponsored below-guideline sentences. But in the very last quarter now, the USSC data show than only 19.8% of sentences were judge-sponsored below-guideline sentences.

Of course, this is a really small change and one might reasonable suggest that we ought to focus mostly on changes to government-sponsored below-guideline sentences when thinking about the impact of the new Sessions memo. But I still thought this little data development was worthy of noting in this post; it is certainly one I will be watching in the months ahead as we get more USSC data on federal sentencing patterns in the second half of 2017.

This WNYC piece provides some interesting data about local marijuana prosecutions in a part of NYC. The piece's headline provides the essential highlights: "Brooklyn DA's Pledge to Reduce Marijuana Prosecutions Makes Little Difference." And here are some of the details:

In 2014, Brooklyn’s new District Attorney Ken Thompson made national headlines when he said his office would decline to prosecute low-level marijuana cases, so long as the defendant had no serious criminal record and wasn’t selling the drug.

Noting that two-thirds of these misdemeanor cases wind up being dismissed, Thompson said they did nothing to promote safety and wound up hurting people of color, in particular. “In 2012, over 12,000 people in Brooklyn were arrested for possessing small amounts of marijuana,” he said, during his inauguration. “Mostly young black men.”

Thompson died of cancer last autumn. He was replaced (at his own request) by his first deputy, Eric Gonzalez, who continued the marijuana policy. But according to WNYC’s analysis, this supposedly groundbreaking change had less impact than many expected.

Using data from the state’s Division of Criminal Justice Services, WNYC found the Brooklyn DA was only slightly less likely to prosecute people for marijuana possession after Thompson took office in 2014. In 2010, almost 90 percent of arrests were prosecuted. That figure fell to almost 78 percent in 2014, and in 2016 roughly 82 percent of arrests were prosecuted. In other words, most people are still going to court because the Brooklyn DA only throws out about one out of every five low-level marijuana arrests.

“I expected to see the number to be higher,” said Kassandra Frederique, New York State director of the Drug Policy Alliance, which supports marijuana legalization.

WNYC also found racial disparities among those who benefited most from the DA’s policy. Last year, the Brooklyn DA declined to prosecute fewer than 20 percent of misdemeanor marijuana arrests involving blacks and Latinos. By contrast, that figure was more than 30 percent for whites and Asians.

Scott Hechinger, a senior staff attorney at Brooklyn Defender Services, which represents low-income people, said he wasn’t surprised by any of this. “It still felt like the people who we were meeting were predominantly black and brown,” he said, when asked what changed after 2014. “And it still felt like an enormous waste of time, energy and money.”...

Gonzalez, the acting district attorney, has a theory for why most defendants are still prosecuted, like Iglesias. “One of the things about our marijuana policy was that it was limited to possession cases,” he explained in an interview with WNYC. “What we think may be happening is that a lot of these arrests is public smoking of marijuana.”

In other words, the district attorney's office still prosecutes those caught puffing a joint in a public place. That’s something many people didn’t fully grasp in 2014 when Thompson announced the policy change.

Both smoking and possession are classified by the state as the same misdemeanor (criminal possession in the fifth degree), the most common low-level charge. There was no way to separate smoking from mere possession from the data provided WNYC. (Several people WNYC interviewed at Brooklyn Criminal Court said they were arrested for smoking in public, including a 17-year-old boy who claimed the police nabbed him in a case of mistaken identity. All of the defendants we met were black or Latino and young.)

Gonzalez, who is running to hold onto his position this fall, said he was troubled by WNYC's finding that blacks and Latinos are more likely to be prosecuted. “I am committed to making sure my office does not contribute to racial disparities," he said. "If it takes me to be more aggressive in declining to prosecute more cases I’m willing to do that."...

Public defenders and legalization advocates now say there is only one way to correct the racial imbalance. They want the DA to stop prosecuting all marijuana cases. “This goes to a deeper need for us to talk institutionally about how the systems work for certain groups of people,” said Frederique.

But Gonzalez, the acting DA, argued that his policy is achieving positive results. Brooklyn declines to prosecute a greater share of cases than any other borough. He also said the DA’s policy put more pressure on the NYPD to make fewer arrests. Almost 17,000 people were arrested for low level marijuana possession in 2010. That number fell to 4,300 in 2016. “We’ve moved a long way,” he stated. “I’m committed to continuing to look at this issue and figuring out, can we have a system in which no one gets arrested for marijuana use where there’s no public safety value?”

Normally I would flag a story focused on marijuana over at my Marijuana Law, Policy & Reform blog, but the case-processing and prosecutorial discretion issues raised here are surely of interest to sentencing fans. And this post also provides an excuse to review some recent posts of note from MLP&R: